The source of legal ruling quotes is an article - Bias a Canadian Perspective
(July 2001) by Trevor H. Bishop, at the law firm of Brisset Bishop in Montreal,
which can be found at www.amac.ca/Bishop.htm.
The term "judge" is used to cover all those who hold legal hearings, including
the OMB. It is clear that rulings quoted from the Supreme Court down
regarding Conflict of Interest and Bias are to be applied to all persons
acting in judicial and quasi-judicial functions. This includes the
OMB.

CONFLICT OF INTEREST - what does it mean in broad terms,
to most reasonable people? To paraphrase the wording in the Information
and Privacy Commission Order M-1091, a decision-maker, or judge, is in
a Conflict of Interest situation when it is reasonable to assume that he
or she is making decisions based on their personal interest rather than
in the public's interest. The question thus being, did the decision-maker
or judge have any kind of personal or special interest in the issue
being decided or in the effect the decision had? For example, by
providing a benefit for another by failing to be impartial, the judge could
in some way be benefiting. Conflict of Interest can be taken as the
trading of favors or some form of patronage, not necessarily direct financial
gain, as the OMB rules suggest. A breach of this fundamental rule
of fairness should automatically cause a statutory delegate of the jurisdiction
to judge and decide the matters at hand. If a delegation does not
take place, the result of this loss of jurisdiction is to render his or
her decisions void. This is regardless of whether or not a Conflict
of Interest was declared at the time.

It is common thread throughout Canadian common law, administrative law,
natural justice and legal process/systems in general that there be an automatic
disqualification for any judges who have any Conflict of Interest(s) with
one of the parties or those involved in general, or is otherwise so closely
connected with a party that they can reasonably be said to be a judge in
their own cause. "The fundamental principle is that a man may
not be a judge in his own cause." It is a logical and reasonable
extension of this principal that a person should not judge their own
work.

BIAS - generally means a "pre-disposition towards", "prejudice",
absence of impartiality, and "unfavourably inclined", in other words to
unfairly favour one side at the expense of the other. Impartiality
& independence are necessary elements for creating the environment
that the principles of natural justice and administrative law need to operate
in. Generally, consideration of Bias by the courts focuses upon whether
or not there is a reasonable apprehension of Bias in a particular proceeding.
The courts have concluded that a "reasonable apprehension of bias" or "justifiable
doubts" are sufficient to intervene and it is not necessary to establish
actual Bias on the part of the decision-maker.

Both Conflict of Interest and Bias cause a loss of independence
and impartiality. The concept of independence and impartiality is
entrenched in S. 11(d) of the Canadian Charter of Rights and Freedoms
(Schedule B of the Constitution Act, 1982, Appendices to Revised
States of Canada, 1985). This section states in part that: "11. Any
person charged with an offence has the right: (d) to be presumed
innocent until proven guilty according to law in a fair and public hearing
by an independent and impartial tribunal."

Valente v. Her Majesty the Queen [1985] 2 S.C.R. 673, at page 689 of
the Valente case, Mr. Justice LeDain states: "Both independence and
impartiality are fundamental not only to the capacity to do justice
in a particular case but also to individual and public confidence in
the administration of justice. Without this confidence, the system
cannot command the respect and acceptance that are essential to its
effective operation." The reasonable apprehension of Bias calls into
question not simply the personal integrity of the judge but the integrity
of the entire administration of justice.

The public must see those who would judge as capable of administering
justice without fear or favour. When a society's or a community's
judges are seen to be making judgements in a position of Conflict of Interest
or are believed to be making Biased decisions, this can be viewed as the
beginning of uncontrollable patronage and corruption of the government
by knowledgeable and reasonable persons, the kind of corruption that endangers
our Democracy's very existence.

....9

- 9 -

Significant legal rulings regarding Conflict of Interest and Bias

The first Supreme Court of Canada case being referred to relating to
impartiality or Bias is Szilard v. Szasz [1955] S.C.R. 3. at pages 6-7:
"It
is the probability or the reasoned suspicion of biased appraisal and judgment,
unintended though it may be, that defeats the adjudication at its threshold."

The Supreme Court of Canada dealt with the subject again in 1978 in
the cases of The Committee for Justice and Liberty v. The National Energy
Board [1978] 1 S.C.R. 369. This case involved an administrative tribunal
where one of the members of the board had been involved previously as a
member of a group which had studied matters related to the application
that came before the board. This case bares a striking similarity
to this OMB matter. Chief Justice Laskin for the majority held at
page 385 that "the only issue here is whether the principle of reasonable
apprehension or reasonable likelihood of Bias" applied to the board.
The
majority held that the member of the board must be disqualified based on
the test of reasonable apprehension of Bias.

The classic test and current standard for a reasonable apprehension
of Bias was that stated by Justice De Grandpré in the above case
at p. 394: "The apprehension of bias must be a reasonable one,
held by reasonable and right-minded persons, applying themselves to the
question and obtaining thereon the required information ... what would
an informed person, viewing the matter realistically and practically, and
having thought the matter through, conclude." The apprehension
of Bias itself must be reasonable in the circumstances of the case or in
this case the political realities in the City of Mississauga.

Another reason why the standard of any "apparent" or possible Bias or
Conflict of Interest is enough to disqualify a judge is that there could
be a chance of unconscious Bias and even that is to be avoided. Cited
in a Supreme Court of Canada case, Benjamin Cardozo, from his work "The
Nature of the Judicial Process" (1921): "Deep below consciousness
are other forces, the likes and dislikes, the predilections and the prejudices,
the complex of instincts and emotions and habits and convictions, which
make the [person], whether he [or she] be litigant or judge." In
Canadian law, the difference between "apparent" and "unconscious" Bias
is not clearly defined. However, it is apparent that a "real danger"
is equivalent to "actual" Bias, even if unconscious.

In the Newfoundland Supreme Court, in Sanwa Bank California v. Quebec
North Shore & Labrador Railway Co. Ltd. (1988) 48 D.L.R. (4th) 360.
The judge (page 367) held that the principle on which he must make a decision
was whether "reasonable apprehension of bias arises where there exists
a reasonable probability that a panel member may not act in an entirely
impartial manner". No evidence of actual Bias need be established.

In the judgement of Lord Denning in Metropolitan Properties Co. (FGC)
Ltd. v. Lannon [1969] 1 Q.B. 577 who had held at page 599: "In considering
whether there was a real likelihood of bias, the court does not look
at the mind of the justice himself or at the mind of the chairman of
the tribunal, or whoever it may be, who sits in a judicial capacity.
It does not look to see if there was a real likelihood that he would, or
did, in fact favour one side at the expense of the other. The
court looks at the impression which would be given to other people.
Even if he was as impartial as could be, nevertheless if right-minded persons
would think that, in the circumstances, there was a real likelihood of
bias on his part, then he should not sit.

And if he does sit, his decision cannot stand:"

Suffice it is that enough reasonable people might suspect he was Bias
or in some kind of Conflict of Interest. The reasons are clear enough.
First and fore most, justice must be rooted in confidence, and confidence
is destroyed when right-minded people believe that the judge was biased
and an unfair hearing had taken place. Under Canadian law, there
must only be a "reasonable apprehension of bias" and the apprehension must
be "substantial". In the Northmount OMB Hearing, the grounds for
apprehension of Bias are "substantial". The OMB's Code of
Conduct is to an even higher standard: "Members should not only be unbiased,
but also appear to be so."